Colucci et al v. ZonePerfect Nutrition Company

Filing 38

Order by Hon. Samuel Conti granting in part and denying in part 26 Motion to Dismiss.(sclc2, COURT STAFF) (Filed on 12/28/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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JAMES COLUCCI and KIMBERLY S.
SETHAVANISH, on behalf of
themselves and all others
similarly situated,

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Plaintiffs,
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v.

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ZONEPERFECT NUTRITION COMPANY, a
Delaware corporation,

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Defendant.

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) Case No. 12-2907-SC
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) ORDER RE MOTION TO DISMISS
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I.

INTRODUCTION

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Plaintiffs James Colucci and Kimberly S. Sethavanish

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(collectively, "Plaintiffs") bring this purported class action

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against Defendant ZonePerfect Nutrition Company ("Defendant"), a

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maker of nutritional snack bars ("nutrition bars").

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Plaintiffs' Complaint is that Defendant's nutrition bars, which

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bear on their labels the statement "All-Natural Nutrition Bars,"

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are not all-natural and hence misleadingly labeled.

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before the Court is Defendant's fully-briefed motion to dismiss the

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Complaint.

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motion is suitable for decision without oral argument.

The thrust of

Now pending

ECF Nos. 26 ("Mot."), 31 ("Opp'n"), 32 ("Reply").

The

Civ. L.R.

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7-1(b).

For the reasons set forth below, Defendant's motion to

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dismiss is GRANTED IN PART and DENIED IN PART.

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II.

BACKGROUND

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A.

Procedural History

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On September 14, 2011, months before Plaintiffs filed the

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instant case, they filed a separate lawsuit against Defendant in

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this Court, with the case number 11-cv-4561-SC.

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for dismissal on February 10, 2012.

Defendant moved

Plaintiffs responded by filing

United States District Court

For the Northern District of California

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an amended complaint on March 2, 2012.

On March 30, 2012,

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Defendant moved again for dismissal.

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motion and, on April 27, 2012, filed a notice of voluntary

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dismissal.

Plaintiffs did not oppose the

On May 1, 2012, the Court dismissed the case.

On April 26, 2012, Plaintiffs had filed a new case against

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Defendant, this time in the California Superior Court for Sonoma

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County.

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The Complaint sets forth eight causes of action: (1) violation of a

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written warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. §

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2301 et seq. ("MMWA"); (2) common-law fraud; (3-5) claims for

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unlawful, unfair, and fraudulent business practices under

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California's Unfair Competition Law, Cal. Bus. & Prof. Code §§

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17200 et seq. ("UCL")1; (6) false advertising in violation of

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California's False Advertising Law, Cal. Bus. & Prof. Code §§ 17500

ECF No. 1 (notice of removal ("NOR") Ex. A ("Compl.").

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The UCL "establishes three varieties of unfair competition -acts or practices which are unlawful, or unfair, or fraudulent."
Berryman v. Merit Prop. Mgmt., Inc., 152 Cal. App. 4th 1544, 1554
(Cal. Ct. App. 2007). Each "prong" of the UCL thus represents an
analytically distinct theory of recovery and imposes different
standards. See Boschma v. Home Loan Ctr., Inc., 198 Cal. App. 4th
230, 252-53 (2011) (distinguishing prongs, explaining standards).
Here, Plaintiffs assert a separate UCL claim under each prong.

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et seq. ("FAL"); (7) violation of California's Consumers Legal

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Remedies Act, Cal. Civ. Code §§ 1750 et seq. ("CLRA"); and, in the

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alternative, (8) restitution based on quasi-contract.

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Defendant received a copy of the state-court complaint no

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earlier than May 7, 2012 and removed to this Court on June 5, 2012.

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NOR ¶ 2.2

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instant case is related to the earlier, voluntarily dismissed case.

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ECF No. 19.

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and the case was transferred to the undersigned.

United States District Court

For the Northern District of California

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On June 28, 2012, the parties stipulated that the

On July 10, 2012, the Court deemed the cases related
ECF No. 23.

On

July 25, 2012, Defendant filed the instant motion to dismiss.

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B.

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In the procedural posture of this case, the Court takes its

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The Nutrition Bars' Labels and Ingredients

account of the facts from the allegations of Plaintiffs' Complaint.
Defendant manufactures, distributes, and sells nutrition bars

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through walk-in and online retailers.

Compl. ¶ 9.

There are

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twenty varieties of Defendant's nutrition bars, and they are sold

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and distributed nationwide in grocery stores, health food stores,

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and other venues.

Id. ¶ 10.

Plaintiffs include in their Complaint twenty color photographs

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that purport to represent each of the twenty ZonePerfect-brand

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nutrition bars.

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brightly-colored, rectangular plastic wrapper emblazoned on the

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left with (among other things) the ZonePerfect logo and the legend

Id. ¶¶ 42(a)-(t).

Each photograph shows a

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Defendant removed on the basis of this Court's federal-question
jurisdiction over Plaintiffs' MMWA claim and its supplemental
jurisdiction over Plaintiffs' other seven, state-law claims. NOR
¶¶ 6-8 (citing 28 U.S.C. §§ 1331, 1367(a), 1441(a) & 1446). Having
reviewed the NOR, the Court determines that Defendant has satisfied
the jurisdictional and procedural requisites of §§ 1441(a) and
1446, respectively. The Court also concludes, as detailed at note
6 infra, that Defendant could have removed on diversity grounds.

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"All-Natural Nutrition Bars," and, on the right, a line of text

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announcing the bar's flavor (e.g., "Chocolate Mint") situated

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beneath an image of an unpackaged rectangular food bar flanked by

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food items representing its flavor (e.g., a sprig of mint leaves

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and a bowl of chocolate pudding).

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Plaintiffs allege that all of Defendant's nutrition bars

ingredients: ascorbic acid; calcium pantothenate; calcium

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phosphates; glycerine; potassium carbonate a/k/a "Cocoa [Processed

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United States District Court

contain at least one of the following ten allegedly non-natural

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For the Northern District of California

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with Alkali]" or "Cocoa Powder [Processed with Alkali]"; pyridoxine

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hydrochloride; disodium phosphate; sorbitan monostearate;

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tocopherols; and xanthan gum.

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that, although the labels on nutrition bars' packages "did disclose

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that [the nutrition bars] contained many of [these] synthetic and

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artificial substances, the labels did not disclose that these

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ingredients were synthetic or artificial, and in some cases did not

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identify that these components existed in ZonePerfect's Nutrition

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Bars at all (e.g., Potassium Carbonate)."

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C.

Id. ¶¶ 21-30.

Plaintiffs allege

Id. ¶ 40.

Plaintiffs' Purchases of Nutrition Bars and Class
Allegations

Mr. Colucci and Ms. Sethavanish are engaged but unmarried.

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See generally id. ¶¶ 7-8.

Both have been residents of Windsor,

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California since December 2010.

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active-duty member of the United States Marine Corps, stationed at

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Camp Pendleton in San Diego County, California.

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lived in Orange, California.

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2010, Mr. Colucci was deployed as part of his military service.

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Ms. Sethavanish would send him a monthly care package.

Prior to that, Mr. Colucci was an

Ms. Sethavanish

From September 2009 through April

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At Mr.

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Colucci's request, she would include in these care packages "two

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multi-bar packs of ZonePerfect Nutrition Bars per month, including

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its Classic ZonePerfect 'All-Natural' Nutrition Bars Chocolate

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Peanut Butter flavor" (herein, "Chocolate Peanut Butter Bars").

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Id.

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Sethavanish would purchase packs of Chocolate Peanut Butter Bars

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every four to six weeks from retail stores near her home.

See id.

Plaintiffs allege that Mr. Colucci believed and relied upon

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Plaintiffs allege that, beginning on September 14, 2007, Ms.

the "all-natural" representation on the label of the nutrition bars
Id. ¶ 7.

United States District Court

For the Northern District of California

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when he asked Ms. Sethavanish to purchase them for him.

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They further allege that Mr. Colucci would not have asked Ms.

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Sethavanish to buy, nor would she have agreed to buy, Defendant's

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nutrition bars had they known the bars were not all-natural.

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¶¶ 7-8.

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either a "truly" all-natural bar or another non-natural bar with a

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lower price.

Id.

Instead, they allege, Ms. Sethavanish would have bought

Id.

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Plaintiffs purport to bring this action on behalf of a

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nationwide class consisting of all persons who purchased any of

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Defendant's nutrition bars on or after September 14, 2007.

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¶ 52.

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Sethavanish allegedly first purchased nutrition bars for Mr.

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Colucci.

See id.

The start of the class period corresponds with the date Ms.

Compare id. ¶ 8 with id. ¶ 52.

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III. DISCUSSION

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A.

Standing

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Defendant challenges Mr. Colucci's constitutional standing to

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bring any claim regarding Defendant's labeling practices because

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the Complaint does not allege that Mr. Colucci personally bought

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Defendant's nutrition bars, only that Ms. Sethavanish bought the

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bars for him.

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challenges the scope of Ms. Sethavanish's standing, arguing that,

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while Ms. Sethavanish has standing to sue for mislabeling of the

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Chocolate Peanut Butter Bars because she alleges that she purchased

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that type of bar, she does not have standing to sue where the other

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nineteen varieties of Defendant's nutrition bars are concerned

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because she does not specifically allege that she purchased those

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types.

Mot. at 5-6; Reply at 6-7.

Defendant also

Mot. at 6-8; Reply at 7-9.

United States District Court

For the Northern District of California

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Article III of the United States Constitution provides that

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the "judicial power of the United States" extends only to proper

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"Cases" and "Controversies."

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from this language limits the federal courts' exercise of the

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judicial power to those cases brought by plaintiffs who meet

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certain minimum requirements.

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750 (1984).

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The doctrine of standing which flows

See Allen v. Wright, 468 U.S. 737,

The
irreducible
constitutional
minimum
of
Article III standing contains three elements.
First, the plaintiff must have suffered an
"injury
in
fact"
that
is
"concrete
and
particularized"
and
"actual
or
imminent."
Second, there must be a causal connection
between the injury and the conduct complained
of, such that the injury is fairly traceable to
the action challenged.
"Third, it must be
likely, as opposed to merely speculative, that
the injury will be redressed by a favorable
decision.

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Renee v. Duncan, 686 F.3d 1002, 1012 (9th Cir. 2012) (quoting Lujan

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v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)) (internal

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quotation marks, brackets, and citations omitted).

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invoking federal jurisdiction bears the burden of establishing

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these elements."

Lujan, 504 U.S. at 561.

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"The party

Defendant's standing

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challenge focuses only on the injury-in-fact requirement: Defendant

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argues that Ms. Sethavanish alleges no injury in fact concerning

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nutrition bar flavors she did not actually purchase and that Mr.

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Colucci alleges no injury at all since he does not allege that he,

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personally, purchased any nutrition bars.
1.

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Ms. Sethavanish

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The Complaint alleges that Ms. Sethavanish purchased nutrition

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bars "including" Chocolate Peanut Butter Bars, but never identifies

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any other flavor.

Compl. ¶ 8.

Both parties' moving papers appear

United States District Court

For the Northern District of California

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to assume that Ms. Sethavanish bought only that flavor, so the

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Court assumes the same for purposes of this discussion.

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Ms. Sethavanish obviously has standing to sue for alleged

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mislabeling of the Chocolate Peanut Butter Bars that she allegedly

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purchased.

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statutory standing requirements imposed by California's UCL are

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satisfied by allegations that a plaintiff would "not have purchased

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the products in question had he known the truth about these

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products and had they been properly labeled in compliance with the

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labeling regulations" and that he "lost money or property when he

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purchased the products in question because he did not receive the

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full value of those products as advertised and labeled due to the

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alleged misrepresentation."

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EJD, 2012 WL 5471153, at *6-7 (N.D. Cal. Nov. 9, 2012).

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does not dispute Ms. Sethavanish's standing as to the Chocolate

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Peanut Butter Bars she allegedly bought.

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Both Article III standing requirements and the separate

Khasin v. Hershey Co., 5:12-CV-01862
Defendant

The issue, rather, is whether Ms. Sethavanish has standing to

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sue for alleged mislabeling of differently flavored bars that she

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did not allegedly buy.

Defendant argues she does not.

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Mot. at 6-

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8; Reply at 7-9.

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Sethavanish did not buy are similar enough to those she did that

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this issue is not one of standing, but rather one of whether Ms.

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Sethavanish can adequately represent the alleged purchaser class --

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that is, a question appropriately raised in the context of a Rule

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23 motion for class certification rather than a Rule 12(b)(1)

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motion to dismiss for lack of standing.

See Opp'n at 6.

As Judge Chen of this District recently observed, "there is

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Plaintiffs argue that the nutrition bars Ms.

authority going both ways" on this issue.

Astiana v. Dreyer's

United States District Court

For the Northern District of California

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Grand Ice Cream, Inc., C-11-2910 EMC, 2012 WL 2990766, at *11 (N.D.

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Cal. July 20, 2012) (Chen, J.).

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Court agrees with Judge Chen that "the critical inquiry seems to be

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whether there is sufficient similarity between the products

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purchased and not purchased."

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Reviewing the cases, however, this

Id.3

Factors that other courts have

It is difficult to identify with certainty how much similarity is
required. Courts have denied standing where a wide swath of
challenged products were purchased but one challenged product was
not. See Larsen v. Trader Joe's Co., C 11-05188 SI, 2012 WL
5458396 (N.D. Cal. June 14, 2012) (denying standing as to unbought
crescent rolls where plaintiff allegedly purchased a wide variety
of products, including cookies, apple juice, cinnamon rolls,
biscuits, and ricotta cheese). Courts also have denied standing as
to unbought products that differed from the purchased product in
only minor, arguably trivial ways. See Dysthe v. Basic Research
LLC, CV 09-8013 AG SSX, 2011 WL 5868307, at *5 (C.D. Cal. June 13,
2011) (denying standing as to an unbought weight-loss pill marketed
as "Relacore" where plaintiff bought only "Relacore Extra," which
had only minor differences in packaging and ingredients; "[J]ust
because an Old Fashioned and a Manhattan both have bourbon doesn't
mean they're the same drink."). But courts have also found
standing as to unbought products that differed only trivially from
the purchased product, see Dreyer's Grand, 2012 WL 2990766, at *13
(different flavors of the same brand of ice cream bearing the same
label), as well as to unbought products that differed fairly
substantially, see Koh v. S.C. Johnson & Son, Inc., C-09-00927 RMW,
2010 WL 94265 (N.D. Cal. Jan. 6, 2010) (two cleaning sprays, one a
window cleaner and the other carpet stain remover, both with the
same allegedly false badge of eco-friendliness). The Court need
not reconcile any tension that may exist in the cases, however,
because it determines, for the reasons set forth herein, that the
challenged products here are sufficiently similar under any test --

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considered include whether the challenged products are of the same

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kind, whether they are comprised of largely the same ingredients,

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and whether each of the challenged products bears the same alleged

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mislabeling.

See Dreyer's Grand, 2012 WL 2990766, at *13.

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Here, the Court concludes that there is more than enough

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similarity between the Chocolate Peanut Butter Bars allegedly

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purchased and the other nineteen varieties of nutrition bars

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identified in the Complaint.

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single kind, that is, they are all nutrition bars.

The accused products are all of a
They share a

United States District Court

For the Northern District of California

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uniform size and shape.

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difference between the bars is their flavor.

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reveals some difference between the ingredients used in different

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flavors, but the similarities are more striking: six of the nine

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challenged ingredients appear in all twenty nutrition bar flavors.

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See Compl. ¶ 42.

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same challenged label: "All-Natural Nutrition Bars."

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On casual inspection, the only obvious
Closer inspection

Most importantly, all twenty flavors bear the

The Court concludes that Ms. Sethavanish has standing for both

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Article III and UCL purposes to sue for alleged mislabeling of all

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twenty nutrition bar flavors identified in the Complaint.
2.

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Mr. Colucci

The Court concludes that Mr. Colucci lacks standing.

As the

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previous section's discussion suggests, standing in product

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mislabeling cases is predicated on the purchase of at least some

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product.

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See Hershey, 2012 WL 5471153, at *6-7.

Here, Plaintiffs

more similar than the weight-loss pills in Dysthe and at least as
similar as the ice cream brands in Dreyer's Grand. The different
flavors of Defendant's nutrition bars are more or less fungible
when viewed from the perspective of a consumer considering buying
one or the other; any preference for one flavor versus another
could rest only on personal idiosyncrasies of taste, diet, or
allergy.

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suggest that Mr. Colucci has standing despite the absence of

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allegations that he personally purchased the products, or even that

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they were purchased using money in which he had a legal interest

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(as might have been the case if, for instance, he and Ms.

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Sethavanish had been married at the time of the purchases rather

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than engaged).
Plaintiffs argue that Mr. Colucci's standing flows from his

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status as the "intended beneficiary" of the purchases.

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The Court disagrees.

Opp'n at 5.

Mr. Colucci may have been a beneficiary in a

United States District Court

For the Northern District of California

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colloquial sense -- Ms. Sethavanish no doubt meant him to enjoy the

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snacks she bought for him -- but Plaintiffs' argument misapprehends

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third-party beneficiary law.

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on the intent of both parties to a contract.

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Residential Briarwood Apartments, 171 Cal. App. 4th 1004, 1023

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(Cal. Ct. App. 2009).

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intend to benefit the third party, it is required that the promisor

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understand the promisee -- here, Ms. Sethavanish -- to have such

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intent.

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compared to the retailer who actually Ms. Sethavanish the bars),

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nothing suggests that Defendant knew Ms. Sethavanish intended to

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benefit Mr. Colucci when she bought the bars or, indeed, knew of

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Mr. Colucci's existence.

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beneficiary of the purchases in any legal sense.

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argument that Mr. Colucci's intended beneficiary status gives him

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Article III standing falters at the gate.4

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Id.

Third-party beneficiary status turns
See Spinks v. Equity

While it is not required for both parties to

Even assuming that Defendant was the promisor (as

Mr. Colucci clearly was not an intended
Plaintiffs'

The one case Plaintiffs cite in support of their argument,
Walters v. Fid. Mortg. of CA, 730 F. Supp. 2d 1185 (E.D. Cal.
2010), is distinguishable. In that case, a plaintiff who claimed
third-party beneficiary status alleged that a promisor (Ocwen) knew
that two promisees (Fidelity "and/or" HSBC) had "entered one or

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The Court DISMISSES this action as to Mr. Colucci for lack of

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standing.

Because no amendment consistent with the current

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allegations could cure the defect, the dismissal is WITH PREJUDICE.

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The Clerk of the Court shall administratively terminate Mr. Colucci

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as a party.

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B.

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Plaintiffs bring only a single federal claim, one for breach

Federal Claim (Magnuson-Moss Warranty Act)

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of written warranty under the federal Magnuson-Moss Warranty Act

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("MMWA").

Compl. ¶¶ 60-70.

The MMWA creates a civil cause of

United States District Court

For the Northern District of California

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action for consumers to enforce the terms of implied or express

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warranties.

15 U.S.C. § 2310(d).

As a threshold matter, the Court considers whether Plaintiffs

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meet MMWA's jurisdictional requirements.

Under § 2310(d)(1)(B),

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private parties may bring a MMWA claim in federal district court.

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Id. § 2310(d)(1)(B).

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of a class, as this one is, a district court may not hear the claim

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if "the number of named plaintiffs is less than one hundred."

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§ 2310(d)(3)(C).

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be dismissed because, here, the number of named plaintiffs is only

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two.

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have found such prerequisites to be irrelevant when, as here, a

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court has jurisdiction under the Class Action Fairness Act, 28

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U.S.C. § 1332(d) ('CAFA')."

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provide a citation to any of those "numerous" opinions or attempt

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to demonstrate that this case satisfies CAFA's jurisdictional

However, if the action is brought on behalf

Defendant argues that Plaintiffs' MMWA claim must

See Mot. at 10.

Plaintiffs respond that "numerous courts

Opp'n at 24.

Though Plaintiffs do not

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Id.

more agreements requiring Ocwen to provide various services to
plaintiff." Id. at 1201. In the case at bar, nothing suggests
that Defendant entered any agreement with Ms. Sethavanish to
provide anything to Mr. Colucci.

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prerequisites, their conclusion is correct.

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Honda Motor Co., Inc., 838 F. Supp. 2d 929, 954-55 (C.D. Cal. 2012)

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(collecting cases holding that Congress's passage of CAFA

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supplanted the jurisdictional requirements of the earlier-enacted

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MMWA).

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the MMWA, only the jurisdictional requisites of CAFA, and they have

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done so here.5

Plaintiffs need not satisfy the numerosity requirements of

Proceeding, then, to the merits of Plaintiffs' MMWA claim, the

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See Keegan v. Am.

Court concludes that the claim fails as a matter of law.

United States District Court

For the Northern District of California

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Plaintiffs allege a breach of written warranty.

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The MMWA defines a written warranty as follows:

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Compl. ¶¶ 65-67.

any written affirmation of fact or written
promise made in connection with the sale of a
consumer product by a supplier to a buyer which
relates to the nature of the material or
workmanship and affirms or promises that such
material or workmanship is defect free or will
meet a specified level of performance over a
specified period of time.

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15 U.S.C. § 2301(6)(A) (emphasis added).

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language ("or") identifies two kinds of written warranties, the

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first warranting a "defect free" product and the second warranting

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a product that will "meet a specified level of performance over a

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specified period of time."

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a "defect free" warranty; specifically, they allege that the

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nutrition bars' "All-Natural" representation constitutes "a written

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promise that the ingredients in the Nutrition Bars were free of a

The MMWA's disjunctive

Plaintiffs allege only the first kind,

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See 28 U.S.C. § 1332(d)(2) (provisions of CAFA giving district
courts jurisdiction over class actions where any class member is
diverse from any defendant and more than $5 million is in
controversy); Compl. (alleging complete diversity of named parties
and placing in controversy more than $5 million).

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particular type of defect (i.e., that they were not synthetic or

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artificial)."

Compl. ¶ 66.

The Court concludes that Plaintiffs' claim fails as a matter

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of law.

Plaintiffs allege that the actionable defect here is the

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artificiality or synthetic nature of the ingredients in the

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nutrition bars.

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other cases.

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WL 5458396, at *3 (N.D. Cal. June 14, 2012) ("[T]his Court is not

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persuaded that being 'synthetic' or 'artificial' is a 'defect.'");

The identical argument has been rejected in many

E.g., Larsen v. Trader Joe's Co., C 11-05188 SI, 2012

United States District Court

For the Northern District of California

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Dreyer's Grand Ice Cream, 2012 WL 2990766, at *2-4 (same, and

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collecting cases).

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persuasive and adopts it here.

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persuasive authority that artificial or synthetic ingredients in

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otherwise unobjectionable food products amount to an actionable

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defect under the MMWA.

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DISMISSED.

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dismissal is WITH PREJUDICE.6

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This Court finds the reasoning of those cases
Plaintiffs fail to marshal any

Accordingly, Plaintiffs' MMWA claim is

Because amendment could not save the claim, the

In Defendant's Notice of Removal, the only stated grounds for
subject-matter jurisdiction are federal-question and supplemental
jurisdiction. See NOR ¶¶ 6-8. Hence, the Court's dismissal of
Plaintiffs' only federal claim raises the question of whether the
Court should exercise its discretion to remand Plaintiffs' seven
remaining state-law claims. The Court is plainly authorized to do
so. See 28 U.S.C. § 1362(c); Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343 (1988). Cohill authorizes district courts to remand state
law claims over which it exercises only supplemental jurisdiction
after all federal claims have been dismissed. See Carlsbad Tech.,
Inc. v. HIF Bio, Inc., 556 U.S. 635, 637 (2009). Not only is
remand authorized in such cases, but usually "the balance of
factors to be considered [. . .] -- judicial economy, convenience,
fairness, and comity -- will point toward" remand. Cohill, 484
U.S. at 350 n.7. The Court concludes, however, that this is not
the usual case. As previously explained, this case satisfies
CAFA's jurisdictional requirements. Further, because the Complaint
alleges complete diversity between the parties and places more than
$75,000 in controversy, Defendant could have removed on diversity
grounds. Given the existence of grounds for subject-matter
jurisdiction separate from those named in Defendant's Notice of

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C.

1.

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State Law Claims
Preemption

Defendant argues that Plaintiffs' state-law claims "stand[] as

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an obstacle to federal law and policy, and so should be dismissed

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as preempted."

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Supremacy Clause of Article VI of the U.S. Constitution, which

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provides that federal law is the "supreme law of the land."

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this provision of the Constitution, "Congress has the power to

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preempt state law."

Mot. at 11.

Preemption doctrine flows from the

Under

Crosby v. Nat'l Foreign Trade Council, 530

United States District Court

For the Northern District of California

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U.S. 363, 372 (2000).

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intent is the "ultimate touchstone" of preemption analysis.

12

Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008).

13

intent to preempt state law may be found if the state law "stands

14

as an obstacle to the accomplishment and execution of the full

15

purposes and objectives of Congress."

16

432 F.3d 976, 981 (9th Cir. 2005) (quoting English v. Gen. Elec.

17

Co., 496 U.S. 72, 79 (1990)).

18

"conflict" preemption theory is the only one Defendant argues here.

19

Thus, in all preemption cases, congressional
See

Congressional

Kroske v. U.S. Bank Corp.,

This "implied obstacle" or

The Court notes, however, that the Ninth Circuit opinion on

20

which Defendant rests its argument was vacated during the pendency

21

of this motion.

22

F.3d 835 (9th Cir. 2011) vacated sub nom. Degelmann v. Advanced

23

Med. Optics Inc., 699 F.3d 1103 (9th Cir. 2012); see also Mot. at

24

11-12, Reply at 11-12 (arguing that Degelmann controls in this

25

case).

See Degelmann v. Advanced Med. Optics, Inc., 659

In the absence of viable authority, the Court declines to

26
27
28

Removal, the Court declines to exercise its discretion to remand
Plaintiffs' remaining state-law claims. Nothing would stop
Defendant from simply removing again, and such a result would
hardly be economical, convenient, or fair.

14

1

entertain Defendant's preemption argument at this time -- without,

2

however, any prejudice to Defendant's right to raise preemption

3

arguments in further proceedings before this Court.
2.

4
5

Plausibility and Particularity

Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff

6

to set forth "a short and plain statement of the claim showing that

7

the pleader is entitled to relief."

8

that Rule 8 requires that a complaint's well-pleaded allegations,

9

if taken as true, must "plausibly give rise to an entitlement to

The Supreme Court has held

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (emphasis

United States District Court

For the Northern District of California

10

relief."

11

added).

12

specific task that requires the reviewing court to draw on its

13

judicial experience and common sense."

14

Determining the plausibility of allegations is "a context-

Id.

Rule 9(b) imposes a higher pleading standard on, inter alia,

15

claims that sound in fraud.

16

constituting fraud" must be "state[d] with particularity."

17

Civ. P. 9(b).

18

"must identify the who, what, when, where, and how of the

19

misconduct charged, as well as what is false or misleading about

20

the purportedly fraudulent statement, and why it is false."

21

Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d

22

1047, 1055 (9th Cir. 2011) (internal quotation marks and brackets

23

omitted).

24

alleged generally."

25

For such claims, "the circumstances
Fed. R.

This "particularity" standard means that a plaintiff

States of mind, however, including intent, "may be
Fed. R. Civ. P. 9(b).

In the case at bar, Defendant argues that the Court should

26

dismiss Plaintiffs' state-law claims as implausible or, to the

27

extent they sound in fraud, as lacking particularity.

28

21; Reply at 2-6.

The argument is unavailing.

15

Mot. at 14-

First, as to

1

plausibility, the Ninth Circuit has made plain that UCL, FAL, and

2

CLRA claims, like those asserted by Plaintiffs here, turn on the

3

application of a "reasonable consumer" standard.

4

Gerber Products Co., 552 F.3d 934, 938-40 (9th Cir. 2008).

5

Defendant's argument as to plausibility is, at bottom, an argument

6

that no reasonable consumer is likely be deceived by the labeling

7

of its nutrition bars.

8

courts have held, that issue is generally not amenable to

9

resolution on the pleadings because it involves issues of fact.

See Williams v.

But, as the Ninth Circuit and numerous

United States District Court

For the Northern District of California

10

See id.; see also, e.g., Dreyer's Grand, 2012 WL 2990766, at *11;

11

Hershey, 2012 WL 5471153, at *7; Vicuna v. Alexia Foods, Inc., C

12

11-6119 PJH, 2012 WL 1497507, at *2 (N.D. Cal. Apr. 27, 2012);

13

Astiana v. Ben & Jerry's Homemade, Inc., C 10-4387 PJH, 2011 WL

14

2111796, at *4 (N.D. Cal. May 26, 2011).

15

whether it would be reasonable for a consumer to believe the

16

nutrition bars' claim to be "All-Natural" and (2) whether the

17

nutrition bars' labels are "likely to deceive," are both factual

18

inquiries beyond the scope of the present inquiry into the "legal

19

sufficiency" of the Complaint.

20

Aerosols Ltd., Inc., 452 F. Supp. 2d 939, 942 (N.D. Cal. 2006)

21

(Rule 12(b)(6) motion tests sufficiency of pleading, not merits).

The questions of (1)

Cf. APL Co. Pte. Ltd. v. UK

22

The Court also rejects Defendant's arguments that the

23

Complaint's allegations of fraud are insufficiently particular.

24

Defendant argues first that Plaintiffs have failed to allege the

25

required element of "specific intent" with particularity.

26

argument fails because Rule 9(b) permits states of mind, including

27

intent, to be pled generally.

28

case from this District where the Court dismissed similar legal

The

Second, Defendant cites a recent

16

1

claims as having been pled with insufficient particularity, but the

2

case is distinguishable.

3

F.R.D. 618 (N.D. Cal. 2011).

4

allege how the challenged product -- a computer storage drive --

5

"f[ell] short of its advertised qualities, e.g., actual versus

6

expected capacity of his drive and actual versus expected

7

performance speed."

8

appears to suggest that Plaintiffs, too, have not alleged with

9

particularity how the purchased nutrition bars fell short of their

See Wang v. OCZ Tech. Group, Inc., 276
In Wang, the plaintiff failed to

Id. at 628.

By citing to this case, Defendant

United States District Court

For the Northern District of California

10

advertised qualities, in other words, how the advertising was

11

false.

12

bars were labeled "All-Natural" but in fact were not.

13

The suggestion is unavailing.

Plaintiffs allege that the

The Court is cognizant of Defendant's argument which purports

14

to show how the Complaint's "central premise" -- that the "All-

15

Natural" statement on the nutrition bars is deceptive because

16

federal regulations describe some of the bars' ingredients as

17

"synthetic" -- is false.

18

Defendant explains at length why "synthetic" ingredients are not in

19

fact unnatural, in the sense of being found "in nature."

20

points out that Plaintiffs admit that certain of the challenged

21

ingredients are naturally occurring compounds (for instance,

22

vitamins) or "common and normally expected to be in foods" like the

23

nutrition bars.

24

if not quite "natural," then not unnatural, and concludes that,

25

therefore, "there is no basis for concluding that the [nutrition]

26

bars are mislabeled."

27

fact, but factual matters are not amenable to resolution at the

28

pleading stage.

See Mot. at 15-17; Reply at 3-4.

Defendant

Defendant asserts that this makes the ingredients,

Defendant may be correct as a matter of

17

1

In a similar vein, Defendant submits a request for judicial

2

notice with six exhibits, the first five of which are screenshots

3

of the websites of purportedly health-conscious grocery stores.

4

ECF No. 27 ("RJN") Exs. 1-5.

5

stores mention ingredients which are also used in Defendant's

6

nutrition bars.

7

non-party grocery stores to "show[] the implausibility of any

8

reasonable consumer being deceived" by the "All-Natural" claim on

9

Defendant's packaging, since products containing the same

In the screenshots, the grocery

Defendant points to these representations by the

United States District Court

For the Northern District of California

10

ingredients are sold at the purportedly health-conscious grocery

11

stores.

12

untenable at the pleading stage.

13

assume the role of fact-finder in the guise of determining

14

plausibility.

15

probability requirement . . . ."

16

quotation marks omitted).

17

the Court to make a factual finding at the pleading stage, the RJN

18

is DENIED as to Exhibits 1 through 5.

19

Mot. at 18-19.

The Court rejects this argument as
The Court is not inclined to

"The plausibility standard is not akin to a
Iqbal, 556 U.S. at 678 (internal

Because Defendant's RJN essentially asks

Defendant presents no reason to dismiss Plaintiffs' state-law

20

claims as implausible or lacking particularity.

21

Court DENIES Defendant's motion to dismiss the state-law claims on

22

those grounds.

23

Defendant challenged Plaintiffs' common-law fraud, UCL, and FAL

24

claims (claims 2 through 6), those claims remain undisturbed.
3.

25
26

Accordingly, the

Because those are the only grounds on which

CLRA Notice

Defendant argues that Plaintiffs' seventh claim, asserting

27

violations of the CLRA, must be dismissed as procedurally

28

deficient.

Section 1782(a) of the CLRA requires that "[t]hirty

18

1

days or more prior to the commencement of an action for damages

2

pursuant to this title, the consumer shall . . . [n]otify the

3

person alleged to have" violated the CLRA "of the particular

4

alleged violations" and "[d]emand that the person correct, repair,

5

replace, or otherwise rectify" the violations.

6

1782(a).

7

this pre-suit notice provision because they sent a demand letter to

8

Defendant on August 30, 2011 but then filed a suit for damages in

9

California Superior Court on September 14, 2011.

Cal. Civ. Code §

Defendant argues that Plaintiffs failed to comply with

See RJN Ex. 6

United States District Court

For the Northern District of California

10

("Aug. 30, 2011 Letter").7

11

letter had been timely, it failed to detail the CLRA violations

12

with sufficient particularity.

13

failure to provide proper notice requires dismissal with prejudice

14

of Plaintiffs' CLRA claim, because later notice and amendment

15

cannot, as a matter of law, cure the initial failure to provide

16

notice.

Defendant argues that even if the

Lastly, Defendant argues that

Mot. at 23-24.

Defendant's position is unavailing.

17

Plaintiffs sent their

18

CLRA notice letter on August 30, 2011, and filed the action now at

19

bar on April 26, 2012 -- nearly eight months later.

20

makes much of the fact that Plaintiffs are on their third complaint

21

in their second case against Defendant.

22

matters to the second, however, if it has some sort of preclusive

Defendant

The first case only

23
24
25
26
27
28

7

Defendant asks the Court to take judicial notice of the August
30, 2011 Letter. The Court declines to do so because it is neither
a fact generally known nor is it the type of source whose accuracy
"could not reasonably be questioned." Fed. R. Evid. 201. The
Court will, however, consider the letter under the doctrine of
incorporation by reference. Under that doctrine, it is sufficient
that no party questions the authenticity of the document and that
the document's contents are alleged in the complaint. Knievel v.
ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). Those conditions are
satisfied here. See Compl. ¶¶ 45-47.

19

1

effect.

2

law or to the preclusion rules of the California state court where

3

the instant case was initially filed.8

4

gives no preclusive effect to the first, voluntarily dismissed

5

lawsuit.

6

commencement of the case now before this Court and thus was not

7

untimely for purposes of section 1782(a).

Accordingly, the Court

The CLRA notice letter was sent eight months before

Defendant's argument that the letter lacked sufficient detail

8
9

Here, it does not, whether one looks to federal preclusion

is similarly unavailing.

Notice need only "give the manufacturer

United States District Court

For the Northern District of California

10

or vendor sufficient notice of alleged defects to permit

11

appropriate corrections or replacements."

12

Inc., 527 F. Supp. 2d 992, 1001-02 (N.D. Cal. 2007) (quoting

13

Outboard Marine Corp. v. Superior Court, 52 Cal. App. 3d 30, 40

14

(Cal. Ct. App. 1975)).

15

Plaintiffs' opposition, essentially concedes it by declining to

16

respond in the reply brief.

17

Letter, the Court concludes that it adequately notified Defendant

Stickrath v. Globalstar,

Defendant, challenged on this point in

Having reviewed the August 30, 2011

18
8

19
20
21
22
23
24
25
26
27
28

As to federal law, "[c]laim preclusion, or res judicata, bars
successive litigation of the very same claim following a final
adjudication on the merits involving the same parties or their
privies." Amadeo v. Principal Mut. Life Ins. Co., 290 F.3d 1152,
1159 (9th Cir. 2002) (internal quotation marks omitted). However,
voluntary dismissals are not judgments "on the merits" unless
specifically so stated or the claim has been voluntarily dismissed
more than once. See Fed. R. Civ. P. 41(a)(1)(B). As to the
preclusive effect of California law, under 28 U.S.C. § 1738, this
Court "must give the same preclusive effect to a state court
judgment as the state courts of that state would themselves give to
that judgment," Noel v. Hall, 341 F.3d 1148, 1159 (9th Cir. 2003),
and California courts do not give preclusive effect to voluntary
dismissals without prejudice, see In re Estate of Redfield, 193
Cal. App. 4th 1526, 1534 (Cal. Ct. App. 2011) ("Application of the
doctrine of res judicata requires an affirmative answer to" the
question "Was there a final judgment on the merits?"); Syufy
Enterprises v. City of Oakland, 104 Cal. App. 4th 869, 879 (Cal.
Ct. App. 2002) ("By definition, a voluntary dismissal without
prejudice is not a final judgment on the merits.").

20

1

of the alleged defect, which was the use of allegedly synthetic or

2

artificial ingredients in Defendant's nutrition bars.
4.

3

Restitution Based on Quasi-Contract

Plaintiffs' eighth and final claim is pled in the alternative.

4
5

Compl. ¶¶ 114-16.

Plaintiffs style this claim as one for

6

"Restitution Based On Quasi-Contract."

7

dismissal of this claim on two grounds.

8

that Plaintiffs have failed to plausibly plead that Defendant's

9

nutrition bars are not natural and hence have failed to plead the

Id.

Defendant seeks

First, Defendant argues

United States District Court

For the Northern District of California

10

existence of a fraud that would make Defendant's enrichment

11

"unjust."

12

claim for unjust enrichment, even in the alternative, because they

13

have already sued in tort.

Second, Defendant argues that Plaintiffs cannot bring a

See Mot. at 24-25; Reply at 14-15.

Defendant's first argument fails because it is predicated on

14
15

plausibility arguments that the Court already rejected.

16

Section III.C.2 supra.

17

presents a closer question.

18

the observation that "courts have inconsistently dealt" with

19

restitution claims.

20

understatement.

21

or restitution -- the terms are synonymous9 -- is not a cause of

22

action, but rather a remedy.

23

neither a claim nor a remedy, but a "principle."

24

unjust enrichment is indeed a cause of action, but one that may not

25

be pled alongside claims for breach of contract or tort.

26

9

27
28

See

Defendant's second argument, however,
Defendant begins its discussion with

Mot. at 24.

"Inconsistent" is an

Some of the cases emphasize that unjust enrichment

Some state that unjust enrichment is
Some state that

Yet

Cf. McBride v. Boughton, 123 Cal. App. 4th 379, 387 (Cal. Ct.
App. 2004) ("Unjust enrichment is not a cause of action . . . or
even a remedy, but rather a general principle, underlying various
legal doctrines and remedies[.] It is synonymous with
restitution." (internal quotation marks and citations omitted)).

21

1

others come to the slightly different conclusion that these claims

2

may be pled alongside contract and tort claims, but only as an

3

alternative, "fallback" claim in the event that the contract or

4

tort claims fail.

5

entirely and simply analyze whether the plaintiff has adequately

6

pled the "elements" of the "claim."

7

appears to have turned on the words used in the caption to describe

8

the cause of action.

Finally, some courts appear to elide the issue

The outcome of some motions

Having reviewed numerous discussions, this Court is persuaded

9

United States District Court

For the Northern District of California

10

by, and adopts the reasoning of, the cases which hold that claims

11

for restitution or unjust enrichment may survive the pleading stage

12

when pled as an alternative avenue of relief, though the claims, as

13

alternatives, may not afford relief if other claims do.

14

Alexia Foods, 2012 WL 1497507, at *3; Trader Joe's, 2012 WL

15

5458396, at *7; Ben & Jerry's, 2011 WL 2111796, at *11.

16

Accordingly, the Court declines to dismiss Plaintiffs' alternative

17

"claim" for restitution based on quasi-contract.

18

extent that plaintiffs are ultimately able to prevail under a tort

19

theory, they will be precluded from also recovering under a claim

20

of unjust enrichment."

E.g.,

However, "to the

Trader Joe's, 2012 WL 5458396, at *7.

21
22
23

IV.

CONCLUSION
The Court ORDERS Plaintiff James Colucci dismissed from this

24

action for lack of standing.

The Clerk shall administratively

25

terminate Mr. Colucci in ECF.

26

has standing to pursue the claims set forth in the Complaint with

27

respect to all twenty brands of Defendant ZonePerfect Nutrition

28

Company's nutrition bars identified in the Complaint.

Plaintiff Kimberly S. Sethavanish

22

1

As to the merits, the Complaint's first claim for relief,

2

arising under the Magnuson-Moss Warranty Act, is DISMISSED WITH

3

PREJUDICE.

4

undisturbed.

The other seven claims set out in the Complaint remain

5
6

IT IS SO ORDERED.

7
8
9

Dated: December 28, 2012
UNITED STATES DISTRICT JUDGE

United States District Court

For the Northern District of California

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